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Prem Chand Vs. Onkar Dutt Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 192 of 1966
Judge
Reported inAIR1972All415
ActsTransfer of Property Act, 1882 - Sections 131; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1)
AppellantPrem Chand
RespondentOnkar Dutt Sharma and anr.
Appellant AdvocateG.N. Verma and ;S.N. Sharma, Advs.
Respondent AdvocateA. Banerjee, Adv.
DispositionAppeal allowed
Excerpt:
.....control of rent and eviction act, 1947 - sale of rented premises - transfer of right to receive arrears of rent in favour of vendee - notice under section 131 to tenant not necessary - demand notice served by the vendee for recovery of rent under section 3(1)(a) shall be valid. - - the defendant then sent a reminder and took up the stand that one month's time for tendering the arrears of rent would not start running till he was satisfied that the defendant was his new landlord. the defendant having failed to pay the arrears of rent as demanded within one month of the service of the notice and having not vacated the accommodation, the plaintiff then commenced the suit giving rise to this appeal. the learned judge of the court below was in error in thinking that the failure to give a..........the arrears of rent from the tenant vested in the plaintiff as he transferee. no matter, no notice of transfer of the actionable claim in writing was sent to the tenant either signed by the transferor or signed by the transferee. the vesting of the right to recover the amount of money as arrears of rent does not depend on the sending of a notice contemplated by section 131 of transfer of property act. the purpose of a notice under the said section is to protect the interest of the transferee of the actionable claim. if a notice as contemplated under section 131 of the transfer of property act is not given, then every dealing with the debt or of a actionable claim by debtor would be valid as against the transfer, and the transferee would not be able to recover the debt if the.....
Judgment:

K.B. Asthana, J.

1. This is a plaintiff landlords' appeal from the decree of the dismissal of his suit for eviction of the defendant-tenant from certain accommodation and for recovery of arrears of rent and damages.

2. The accommodation in suit was owned by Dhruv Prasad and Kailash Prasad whose tenant the defendant was. By a sale deed executed on 21-8-1963 Dhruv Prasad and Kailash Prasad transferred the accommodation to the plaintiff. By another document executed on the same date the actionable claim to recover all the arrears of rent due from 18-5-1960 upto date was also transferred to the plaintiff. Then on 21-11-1963 the plaintiff sent a notice through a lawyer to the defendant intimating that the plaintiff had become the landlord by virtue of the transfer dated 21-8-1963 from the previous landlord who had also sold the right to recover the arrears of rent due and demanded the payment of the arrears of rent with effect from 18-5-1960 upto 21-11-1963 within one month and service of the notice and also terminated the tenancy and asked the defendant to vacate the accommodation on the expiry of 30 days of the receipt of the notice. The defendant did not tender the amount of arrears of rent due but sent a reply to the plaintiff's lawyer asking him to send a copy of the sale deed so that the defendant could satisfy himself that the plaintiff was the new landlord. No reply was sent by the plaintiff to this letter of the defendant. The defendant then sent a reminder and took up the stand that one month's time for tendering the arrears of rent would not start running till he was satisfied that the defendant was his new landlord.

The defendant having failed to pay the arrears of rent as demanded within one month of the service of the notice and having not vacated the accommodation, the plaintiff then commenced the suit giving rise to this appeal. Besides the facts mentioned above, the plaintiff further alleged in this plaint that the defendant had sub-let a part of the accommodation to one Dr. Ram Narain who was impleaded as second defendant in the suit. The defence set up was that there was no subletting and Dr. Ram Narain who is the brother-in-law was sitting in a part of the accommodation as a mere licensee. It was pleaded that the defendant-tenant was not in arrears as he had paid the rent to the previous landlord and there being no default, the suit of the plaintiff was barred by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act.

3. The trial court found against the plaintiff on the issue of sub-tenancy but held the defendant-tenant to be in default in payment of arrears of rent despite the notice of demand having been served and held that the suit of the plaintiff was not barred under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. The notice under Section 106 of the Transfer of Property Act was found to be valid and duly served.It was also found that the defendant-tenant had not paid any rent since 18-5-1960 to the previous landlord and the plaintiff was entitled to recover the same being an assignee from the previous landlord. On these findings the suit of the plaintiff was decreed. On appeal by the defendant-tenant the Learned Judge of the lower appellate court held that the suit of the plaintiff for eviction was barred by Section 3 of the Rent Control Act on the finding that the defendant as a tenant had not committed any default in payment as the plaintiff was not entitled to recover any arrears of rent as no notice as required under Section 131 of the Transfer of Property Act for the transfer of the actionable claim to recover the arrears of rent, had been served. The appeal was allowed and the suit of the plaintiff stood dismissed.

4. It was urged on behalf of the plaintiff-appellant that the finding of the court below to the effect that the plaintiff was not entitled to recover the arrears of rent due to the previous landlord for want of notice under Section 131 of the Transfer of Property Act was legally erroneous. This contention, I think has great force. The deed dated 21-8-1963 by which the right to recover the arrears of rent from the tenant was transferred by the previous landlord to plaintiff has been proved, so has been proved the deed of transfer of the accommodation on the same date. Both the deeds were registered. By virtue of Section 130, Sub-section (1) of the Transfer of Property Act a right to recover the arrears of rent from the tenant vested in the plaintiff as he transferee. No matter, no notice of transfer of the actionable claim in writing was sent to the tenant either signed by the transferor or signed by the transferee. The vesting of the right to recover the amount of money as arrears of rent does not depend on the sending of a notice contemplated by Section 131 of Transfer of Property Act. The purpose of a notice under the said section is to protect the interest of the transferee of the actionable claim. If a notice as contemplated under Section 131 of the Transfer of Property Act is not given, then every dealing with the debt or of a actionable claim by debtor would be valid as against the transfer, and the transferee would not be able to recover the debt if the debtor pays it to transferor or deals with in any other manner permitted by law.

The learned Judge of the court below was in error in thinking that the failure to give a notice under Section 131 of the Transfer of Property Act will not create the legal liability on the defendant-tenant to pay the arrears of rent to the plaintiff. There is no evidence on record thatthe defendant-tenant ever paid the arrears or any part of it to the previous landlord, I think the learned Munsif was right in holding that the plaintiff having acquired a right to recover the arrears of rent from the defendant-tenant, was entitled to demand it and the failure of the defendant-tenant to tender the amount of arrears due within one month of the receipt of the notice of demand made him a defaulter and he ceased to be protected by Section 3 of the Rent Control Act

5. Another circumstance which seems to have influenced the learned Judge of the court below was that the defendant-tenant would not be deemed to be a defaulter as he had a right to be satisfied of the bona fide title of the plaintiff and in making the enquiries to satisfy himself, the defendant-tenant would not be deemed to have ignored to the notice. Reliance was placed on a Learned Single Judge decision of this Court in the case of Nanhey Main v. Sheikh Mohd. Yusuf, (1965 All LJ 321). I do not think the decision in that case is helpful to the defendant in the instant case. The decision in the case of Nanhey Main turned on the peculiar facts found therein. In that case the previous landlord and as well as the transferee from the landlord both had served notices of demand of arrears of rent on the tenant and in these circumstances the learned Single Judge held that the tenant was within his right to be satisfied as to which one as the landlord entitled to receive the rent. Here on the facts of the instant case there arose no such complication. Moreover, the decision of the Learned Single Judge in the case of Nanhey Main appears to have been impliedly overruled by the Division Bench in the case of Bhagwan Singh v. Smt. Surjit Kaur, (1971) All LJ 1348 = (AIR 1972 All 216). It has been held that a person purchasing the accommodation and as well as the arrears of rent will as assignee of the landlord, be entitled to serve a notice of demand within the meaning of Section 3 (1) (a) of the Rent Control Act.

6. For the reasons given above, I allow the appeal, set aside the judgment and decree of the lower appellate court and restore that of the court of first instance with costs throughout.


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